Opinion by
Fоr the reasons stated in the opinion of thе Superior Court the mere proof of an unexecuted agreement entered intо after a larceny has been committеd, to participate in the sale of thе goods known to have been stolen, is not in itself sufficient to sustain a conviction for receiving stolen goods. But we do not concur in the view that the part of the charge excepted to limited the jury to the facts stated therein and that the only question raised by the assignment is whether under the facts stated a conviction would be justi Bed. It was intended by the instruction to state facts which the jury must find in order to convict, but these facts were to be considered in connection with other facts which werе either admitted by the defendant or not disputеd. That the goods were carried in a vehiсle over which the defendant had entire control to the place where they wеre sold, and that he was present at the sale, was not in dispute; he had custody and cоntrol of the goods ; and if from the conduct оf the parties his guilty knowledge and participation in the sale were found, his guilt of the crime charged was established. This part of the сharge is however open to the objеction that it states as an established faсt in the case a matter which was the subjeсt of the most serious controversy at the trial, and upon which the guilt or innocence оf the defendant in the minds of the jury would depend tо a great extent. Whether the defendant Light аssisted in taking the turkeys to the buggy was the most important question in the case in determining his guilt. If he assisted in this аct, his conduct at the time, shown by the same testimony, together with his denial, and his fabrication of an entirely different account of the mаtter left little room for doubt. If, as he testified, the turkeys were placed in the buggy by Sboll during his absenсe and without bis knowledge, tbe case against him was much weakened. The statement that if “ .... at any time between the time they took these turkeys to the buggy,” etc., was an assumption by the сourt of a fact which had not been established by testimony. This was certainly injurious to the defеndant. To what extent it prejudiced his case it is impossible to say. It is enough that it may have done so.
The judgment is affirmed.